Will unClear and equivocal – applying Fell & Fell

If a Will has a mistake in it, in most cases the Courts will do what they can to correct the error. When it comes to interpreting the uncertainty of a provision in a will, Isaacs J in Fell v Fell (1922) 31 CLR 268 at 273, held the meaning of a will was to be discovered from the plain meaning of the words and sentences it contains aided only by such extrinsic evidence as necessary.

“[a] necessary inference is one the probability of which is so strong that a contrary intention cannot reasonably be supposed.”

The Case

The Will of William Jamieson, who died on 4th August 1920, stated:—

”This is the last will and testament of me William Jamieson at present residing at ‘ Ormiston ’ Kirribilli North Sydney New South Wales I give devise and bequeath unto John H. F. Jeffrey Marguerite, Jeffrey John D. Fell, Hugh Mackinley Fell, Robert A. Fell, Masie Fell, Helen Fell, Jessie Donald Smith, Struan Smith, M. M. Lovegrove, Joseph M. Berry, and hereby appoint David Fell Equitable Build­ings George Street Sydney & Donald Smith dentist 159 Macquarie Street Sydney executors of this my will”

David Fell and Donald Smith obtained a grant of probate and then applied to the Supreme Court of New South Wales for the determination of the following questions:

(1) Whether upon the true construction of the will the defendants and the other persons mentioned as beneficiaries in the will are entitled to partici­pate in the estate of the testator.

(2) Whether upon the true construction of the will there is an intestacy in the estate of the testator.

John Fell and Jessie Smith, two of the beneficiaries submitted that William had frequently said that so far as he knew he had no living relatives.

The Supreme Court held that following the true construction of the will the beneficiaries were not entitled to the estate of the testator, therefore William was intestate; referring the matter to the Master in Equity to inquire as to Williams next-of-kin.

John Fell and Jessie Smith appealed to the High Court which upheld the appeal and declared that the named beneficiaries were entitled to equal shares of the estate.

Isaacs J set out 10 principles to follow when faced with the task of construing a will; noting inter alia that the bare nomination of an executor is sufficient to make a valid will, as it is presumed the nominated executor will be entitled to use the estate assets to pay the estate debts and testamentary expenses and will be entitled to the residue unless the words of the will clearly express the executor holds the residue for beneficiaries.

In using the words “give devise and bequeath”, Isaacs J held the Will sufficiently indicates an intention to give the whole of the estate to the eleven named beneficiaries in equal shares.

Williams’ declaration that the document is his last will and testament, appoints executors and reflects his testamentary intentions; coupled with the presumption against intestacy, takes the case out of conjecture and implies the testator intended to dispose of the whole of his property to the named beneficiaries

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